HKSAR v. GUTIERREZ ALVAREZ KEISHU MERCEDES

HCCC 84/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 84 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant, Gutierrez Alvarez, Keishu Mercedes, faced one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. She pleaded not guilty and was found guilty unanimously by the jury after trial.

The facts of this case are fairly straightforward. The defendant arrived in Hong Kong on 9 August 2015 from Sao Paulo via Abu Dhabi. She was intercepted by Customs officers when she went through the “nothing to declare” channel and upon a body search, a total of eight packets of cocaine were found tied to her lower legs, four on each side. The defendant was arrested for the offence of trafficking in a dangerous drug.

Later analysis confirmed that the eight packets contained a total of 1,995 grammes of a solid containing 1,664 grammes of cocaine with an estimated retail value of over HK$2 million.

The defendant’s defence was one of duress, that she was forced to bring the dangerous drug into Hong Kong by someone called Mikael, after she was tricked to go from her hometown in Venezuela to Sao Paulo where she was detained by Mikael against her will, repeatedly raped and beaten up and with the threat that her family members in Venezuela will be killed if she did not do so.

By their verdict, the jury had obviously unanimously decided that the prosecution have proved that duress does not apply in this case. The fact that the jury did not take very long to return their verdict would also indicate that they did not find the defendant’s account believable.

The defendant is a national of Venezuela. She is now aged 32 with two children. One child is in Venezuela and a baby is with her in prison as that second child was born in February of this year when the defendant was in custody. The defendant had no criminal record either in Venezuela or in Hong Kong. She is a university graduate and she used to work in advertising in Venezuela.

Mr Raffell, counsel for the defendant, very frankly admitted that there is not much he could say in mitigation under the circumstances. He asked me to consider the fact that the defendant was co-operative and tried to give information to the Customs. It was unfortunate, he said, that the Customs did not do the proper investigation. The defendant is still willing to offer assistance to the authorities. Mr Raffell also informed me that the defendant’s grandmother reported her missing last year in July and the family had moved away from their home. Mr Raffell asked me to take into consideration also the fact that she has a baby with her now.

Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of HK$5 million and to imprisonment for life. The total quantity involved here is 1,664 grammes of cocaine. According to the guidelines in the case HKSAR v Abdallah [2009] 2 HKLRD 437, trafficking between 1,200 and 4,000 grammes of cocaine, the appropriate starting point is between 23 to 26 years.

As the defendant was in possession of the cocaine for the purpose of importing it into Hong Kong, there is an international element in this case (See the case of Abdallah and HKSAR v Hong Chang Chi [2002] 1 HKLRD 486.) For a quantity of over 1 kilogramme, the enhancement would not be less than 2 years in addition to the new guideline tariff set out in Abdallah.

I appreciate what Mr Raffell had told me: that her grandmother had reported her missing in July last year and the family had to move away. However, no such evidence was before the court in front of the jury and the jury had clearly found that duress does not apply in this case. I do not see that the guidelines do not apply in this case although I am prepared to adopt the lowest starting point available; that is 23 years.

Again, I do not see any good reason to say that the enhancement for the international element should be less than 2 years. The defendant’s offer to assist the authorities, without more, does not amount to a mitigating factor for me to reduce her sentence.

So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 25 years’ imprisonment.